Judgment: This Revisional application is directed against the order dated 31.8.81 passed by B. Banerji, learned Sub-Divisional Judicial Magistrate, Asansol directing the Officer-in-Charge of Chittaranjan Police Station for proper assistance to enter into the quarters No, C/11/B Street No.63, Chittaranjan and remove any person found therein and deliver possession of the same to the concerned railway authority under S.138 of the Indian Railways Act, 1890. 2. It is not disputed that the petitioner was a Railway servant working in Chittaranjan Locomotive Works and was allowed to occupy the aforesaid railway quarters at Chittaranjan, his service was terminated due to retirement from railway service with effect from 146.76, and that a notice was served on him on 21.1.80 to vacate the said railway quarters and that the petitioner has not vacated the said railway quarters after service of notice. In these circumstances, the concerned railway authority applied before the learned Sub-Divisional Judicial Magistrate, Asansol for an order under S.138 of the Indian Railways Act directing the police officer to enter the said quarters and remove the petitioner and deliver the same to the railway administration. On such application the learned Magistrate has passed the impugned order dated 31.8.81. 3. It is submitted by the learned Advocate for the petitioner that the learned Magistrate bas erred in making the impugned order without giving the petitioner an opportunity of being heard and thereby violating the principle of audi alterum partem as the rules of natural justice ought to have been complied with by the learned Magistrate before making the impugned order. 4. In this connection learned Advocate for the petitioner has referred to the decision in the case of Daud Ahmed v. The District Magistrate, Allahabad & Ors. AIR 1972 SC 896 relating to S.3 of the U.P. (Temporary) Control of Rent and Eviction Act, 1947 and the decision reported in the case of G. Rajalakshmi & Ors. v. Appellate Authority & Ors. AIR 1980 A. P. 100. But it bas been observed by the Supreme Court in the aforesaid decisions (vide paragraph 12) that the application of any statutory power depends primarily on the purpose and provisions of the Act. It is the nature of the power and the circumstances and conditions under which it is exercised that will occasion the invocation of the principles of natural justice. It is the nature of the power and the circumstances and conditions under which it is exercised that will occasion the invocation of the principles of natural justice. The provisions of the relevant Acts which arose for consideration in the aforesaid two decisions, relied on by the learned Advocate for the petitioner, spelt out the necessity of giving an opportunity of being heard to the party against whom the impugned order was made by the executive authority or the tribunal. 5. But in the present case the relevant provisions of the Indian Railways Act namely S.138 thereof runs as follows : "138. Procedure for summary delivery to Railway administration of property detained by railway servant: - If a railway servant is discharged or suspended from his office, or dies, absconds or absents himself, and he or his wife or widow, or any of his family or representatives, refuses or neglects after notice in writing for that purpose, to deliver upto the railway administration, or to a person appointed by the railway administration in this behalf, any station, dwelling house, office or other buildings with its appurtenances, or any books, papers or other matters, belonging to the railway servant at the occurrence of any such event as aforesaid, any Presidency Magistrate or Magistrate of the first class may, on application made by or on behalf of the railway administration, or any police officer, with proper assistance, to enter upon the building and remove any person found therein and take possession of the books papers or other matters, and to deliver the same to the Railway administration or a person appointed by the railway administration in that behalf". It deals with procedure for summary delivery to the railway administration of the property detained by the railway servant. 6. It deals with procedure for summary delivery to the railway administration of the property detained by the railway servant. 6. In the case of Divisional Superintendent, Eastern Railway v. Suresh Chandra Chakraborty AIR 1957 Calcutta 97, a learned single Judge of this court while discussing the power of Magistrate to pass an order under S.138 of the Indian Railways Act has found that there are two things to be satisfied before such an order can be made by a Magistrate first is that the Railway servant in question must be discharged or suspended from his office or that he should die or abscond himself and the second is that he or his wife or widow or any of his family or representative refuses or neglects, after notice in writing for that purpose, to deliver up the property in question in his possession. The learned Judge also found that the word "discharge" is general enough to include in it discharge or retirement so that even if a railway servant has been relieved of his office on retirement he will come within the mischief of said section. 7. Reliance has been placed by both the parties on a Bench decision of the Madras High Court in the case of Margem Aliver v. S.J. Mercer. 15 Criminal Law Journal 225 wherein it bas been held that possession of the staff quarters lawfully obtained by railway employee while under the service of the Railway, can be lawfully determined only by steps 'taken under S.138 of the Railways Act and the fact of his dismissal does not by itself put an end to his right of possession. 8. Learned Advocate for the opposite party has referred to the decision of Allahabad High Court in the case of Ram Bilas Pandey v. State of U. P. 1974 Allahabad Law Journal 507 where a learned single judge has held that if the conditions mentioned in S.138 of the Act are fulfilled the Magistrate is competent to make an order directing the police authorities to remove the railway servant concerned from the Railway property and in making such order the Magistrate does not function as a court but he functions as an executive officer and as there is no lis before the Magistrate, there is no provision for summoning the person who is going to be dispossessed for affording him any opportunity to take part in the proceedings. 9. After hearing the learned Advocates for both the parties and considering the purpose and provisions of S.138 of the Indian Railways Act I respectfully agree with the views expressed by the learned single Judge of this court in the aforesaid decision reported in AIR 1957 Calcutta 97 and the learned single Judge of the Allahabad High Court in the decision reported in 1974 Allahabad Law Journal 507 and hold that if the conditions mentioned in the said section are fulfilled as in this case, it is not required of the learned Magistrate to give the railway servant, who is going to be evicted from the railway property, any notice or opportunity of being heard before making the order directing the police to remove him therefrom, otherwise the very purpose for which S.138 has been enacted is likely to be frustrated by the delay that may be caused if such procedure of giving notice and opportunity of being heard be followed because the section itself shows that if a railway servant absconds or absents himself and after notice in writing refuse or neglect to deliver up to the railway administration among other things any station or any books, papers or other matters the railway authority can apply before the Magistrate and on such application the Magistrate may order a police officer to remove the railway servant from the railway property and deliver possession thereof to the railway administration and in such a case delay would hamper the running of trains. 10. In my view, provisions of S.138 and the purpose for which it has been enacted do not require that the Magistrate, before making the order under that section, shall give the railway servant concerned who has no legal right to possess the railway property an opportunity of being heard and so in the present case it cannot be said that the impugned order is bad in law, for failure to give the petitioner any opportunity of being heard before it was made. 11. In the result, I find the application cannot succeed and it is disallowed. The Rule is discharged. 12. Let the order be communicated to the learned Magistrate expeditiously. Rule discharged.